The Crown Prosecution Service (CPS) is a non-ministerial department of the Government of the United Kingdom responsible for public prosecutions of people charged with criminal offences in England and Wales.
Although the Crown Prosecution Service (CPS) as the principal prosecuting authority in England and Wales is not per se an Asset Recovery Unit but it does have a dedicated team of experts within its HQ called the Central Confiscation Unit who deal with a number of important aspects of the asset recovery regime.
Prior to Part 2 of the Proceeds of Crime Act 2002 (POCA) coming into force on 24 March 2003, criminal prosecutors had to seek confiscation orders from the Crown Court under the Drug Trafficking Act 1994 (DTA) and Part VI of the Criminal Justice Act 1988. The prosecutor could apply to the High Court to preserve the defendant's assets where proceedings had been instituted or the defendant was to be charged, or an application in respect of further confiscation proceedings had been made or was to be.
However, Part 2 of POCA extended the Crown Court’s powers to make confiscation orders and made the Crown Court the main venue for confiscation and related proceedings for offences committed after 23 March 2003. Prosecutors now have a more central role to play in the process of restraint and confiscation.
The main areas in which CPS prosecutors are involved are as follows:
- Early Advice to the police regarding preservation of assets, investigations etc and will make the applications for restraint, confiscation and the appointment of management and enforcement receivers. CPS prosecutors do not represent the police in cash seizure cases or when the police seek to use the powers under Part 8 of POCA 2002.
- A prosecutor decides which charges are to be brought before a criminal court and this selection can determine which asset recovery procedure applies (i.e. POCA 2002 or the earlier legislation); he will also determine whether to accept pleas of guilty proffered by a defendant as this can also affect the final value of the amount of proceeds of crime that can be recovered.
In the case of Sekhon [2002] EWCA Crim 2954, the Lord Chief Justice described confiscation orders as being one of the most successful weapons, which can be used to discourage offending committed to enrich the offender, so where the evidential test is satisfied in respect of offences, which allow the POCA provisions to be used by the Court to best advantage, then it will almost always be in the public interest to prosecute those offences.
CPS prosecutors are often best placed to assist in ensuring that all material is reviewed in accordance with the duties imposed by the Criminal Procedure and Investigations Act 1996 (CPIA), whether that material is in a separate restraint and/or confiscation file, or with ARA. There may also be some issues relating to differential disclosure for example problems may arise in cases involving co-defendants. Information disclosed by one defendant to the Court in respect of restraint and/or confiscation might only be disclosable to a co-defendant with leave of the Court.
The Proceeds of Crime Act (2002) provides the prosecutor with the right to appeal to the Court of Appeal, when the Crown Court has refused to make a Restraint Order or a Confiscation Order or to appoint or give powers to a Management or Enforcement Receiver, or has made such an Order but not in the terms sought by the prosecution.
The prosecution has a right of appeal to the House of Lords against a Court of Appeal decision in these cases.
The defendant or persons affected by these orders are able to avail themselves of the same rights of appeal.
The appeal procedure may be found in a combination of POCA, the Criminal Appeal (Confiscation, Restraint and Receivership) Rules 2003 and in the Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003 (SI 2003 No. 82).
In addition to the above, the right to appeal is also given to persons affected by an order of the court in respect of a refusal to vary or discharge a restraint order and in respect of receivership orders. The defendant may appeal to the House of Lords in respect of a decision of the Court of Appeal made pursuant to an appeal by the prosecutor or the Director of ARA in respect of the making or the refusal to make a confiscation order. POCA is likely to be a very fruitful source of appeals.
The CPS's CCU will provide general advice and assistance in restraint, confiscation and receivership matters. They can be contacted on +44 207 796 8285.
